446 GAMING. 



good and capable of being enforced until some security is 

 given for tbe amount, and then that, by the giving of the 

 security, the consideration should become bad." 



The necessary conclusion is then arrived at, namely, 

 " that the statute of Anne, in connection with the 5 & 6 

 Will. 4, c. 41, must be taken to avoid all contracts for the 

 payment of money won at play ; " and of course all other 

 contracts within the first section of 9 Anne, c. 14. 



According to this view, then, every possible consideration 

 within 6 & 6 Will. 4, c. 41, for any note, bill, or mortgage 

 is -void, and we are reduced to the dilemma of being obliged 

 to bold that the winner of a stake or the lender of money 

 in any lawful game, where his right to recover could never 

 otherwise be disputed, is precluded from bis remedy on 

 account of the existence of the possibility of his taking a 

 note, bill, or mortgage within the statute as security for his 

 stake or loan. And therefore the sum agreed to be paid to 

 the winner of a horse race could never be recovered, if we 

 hold that such a race is now meant by the word " game." 

 However, if the point had come directly before the Court, 

 perhaps a different opinion might have prevailed. 



In Thorpe v. Colman {e), the Court of Common Pleas 

 studiously guarded themselves against expressing an opinion 

 on the construction put by the Court of Exchequer upon 

 5 & 6 Will. 4, c. 41, and the case was decided on another 

 ground. 



In a later case (/), however, Mr. Justice Coltman makes 

 the following remarks : " It certainly does seem to be a 

 singular anomaly, that the winner of a race should be 

 entitled to recover the stakes, and yet that by tbe combined 

 operation of 9 Anne, c. 14, and 6 & 6 Will. 4, c. 41, if a 

 promissory note or other security were given for the amount, 

 iie would be precluded from availing himself of it, by reason 

 of the illegality of the consideration." 



The 5 & 6 Will. 4, c. 41, is "An Act to amend the Law 

 relating to securities given for considerations arising out of 

 gaming, usurious and certain other illegal transactions." 

 It is founded on 16 Car. 2, c. 7, and 9 Anne, c. 14, both 

 of which are Acts to prevent excessive gaming ; and the 

 notion upon which the sections with regard to securities in 

 writing were probably framed appears to ha\e been, that 

 there would be less danger of excessive and immoderate 

 gaming, if people were kept as much as possible to playing 



(e) Tliorpc V. Coleman, 1 C. B. (/) Batty v. Marriott, 5 C. B. 



990 ; 14 L. J., C. P. 2G0. 828. 



